Guardians of the law attack free speech

Between the state and some high courts, free speech is constantly under attack. The Assam Rifles order is only the latest in a string of diktats.

PRASHANT REDDY THIKKAVARAPU does a comprehensive analysis

Over the last few months we’ve seen several state institutions attempting to unreasonably restrict free speech in India. The Immigration Bureau stopped Priya Pillai from leaving the country, the Censor Board tried to bleep out portions of Pankaj Butalia’s documentary film, the Maharashtra State Legislature has issued a breach of privilege notice to Shobha De, the Ministry of Home Affairs has banned reporting from jails, the Delhi High Court has used its contempt powers to restrain media houses from printing stories related to family members of judges, and of course the police in several states has liberally slapped sedition and other charges against the aam admi for something as trivial as singing a poem. Joining this illustrious list of institutions in the last couple of weeks, are the Assam Rifles and the High Court of Meghalaya.

As reported earlier on the Hoot, a colonel of the Assam Rifles, which is one of the oldest para-military forces in the country wrote to editors of newspapers in the North East warning them that any reporting “which projects the demands of the NSCN(K) and gives it publicity” could be construed as a violation of the Unlawful Activities (Prevention) Act, 1967 (UAPA) since the NSCN(K) itself is a banned organisation under the UAPA. The journalists from newspapers which received the warning letter are obviously angry as a former editor has explained in this interview to the Hoot and rightfully so. These journalists however shouldn’t be intimidated by such letters from the Assam Rifles because the law on the point is fairly settled. As explained so eloquently by Justice Nariman in the Shreya Singhal case, there are three basic concepts in any discussion on the fundamental right to free speech under Article 19(1)(a). The first is discussion, the second is advocacy and the third is incitement. In his words, the first two are at the heart of the free speech right – no matter how unpopular the view in question, mere discussion or advocacy of such an opinion cannot be punished under the law. It is only when such advocacy or discussion reaches the level of incitement that the reasonable restrictions under Article 19(2) kick in. Even then, the incitement should be the equivalent of the ‘spark in the powder keg’ i.e. the speech in question should have the likelihood of causing public disorder or violence in the immediate future.

Although Section 13 of UAPA provides for punishment of any person who ‘advocates, abets, advises or incites the commission of an unlawful activity’ (which is defined widely), it is necessary to understand that Indian courts have not always given such provisions of law a literal interpretation especially when such a literal interpretation would lead to an infringement of fundamental rights. For example in the case of Arup Bhuyan v. State of Assam, where a TADA court had convicted a person for being a member of the banned ULFA, the Supreme Court on appeal overturned the verdict. Justice Katju had held that even if the accused was a member of a banned organisation he would not automatically be convicted under TADA. In pertinent part' he held “In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.”In fact there is also a solid body of case law from the Madras High Court upholding the right to hold meetings and discussions in favour of the LTTE which is a banned organisation under UAPA. In the case of Pugazendhi Thangaraj v. the Commissioner of Police the petitioner had been denied permission by the Commissioner of Police to conduct a signature campaign to get signatures from the public to send to the President of India to remove the ban on the LTTE. The Commissioner denied permission and also informed the petitioner that any such signature campaign would be an offence under the law. The Madras High Court however quashed the Commissioner’s order after citing precedents such as the Arup Bhuyan case to conclude that the petitioner had a right to conduct such a signature campaign.There are several other judgments on these lines from the Madras High Court.

Moving to the second case i.e. the judgment by the High Court of Meghalaya gagging the press in the state from publishing any call for a bandh by a banned organisation, the Hoot has a detailed piece on the judgment over here. Any breach would be considered a contemptable offence, the court said.

Such an order is completely illegal and unconstitutional because it imposes prior restraints on free speech i.e. the order prevents the speech from even taking place. The Supreme Court has made it clear that such ‘prior restraints’ are unacceptable under the law. It did so first in the Rajagopal v. State of TN case and then again in the Sahara v. Sebi case. In the latter case, the Court had held that under its contempt powers, it could merely postpone, and not prevent, free speech in the reporting of sub-judice cases, but made it very clear that even such postponement orders were to be the exception and not the rule. The Meghalaya High Court doesn’t really discuss any of this case law or also provide any precedent to support its conclusion that publishing a call for a bandh is illegal under the law. Instead the High Court, merely discussed precedents from other Courts prohibiting the forceful enforcement of a bandh or hartal and also allowing parties affected by a bandh to seek compensation from the person enforcing such a call for a bandh.

The media in Nagaland and Meghalaya need to actively pursue these cases by filing appeals before the Supreme Court and create precedent for the future. Even victories before the Supreme Court aren't going to stop the State from cracking down on free speech – just look at the Chief Minister of Tamil Nadu, she relentlessly attacks free speech under every possible law only to be rebuffed by the High Court on most occasions. Every victory for the press or her critics makes the next case they fight against her a bit easier. As they say, eternal vigilance, is the price of liberty.

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